Alicekutty v. Kadambazhippuram Grama Panchayat — 1996 DIGILAW 247 (KER)

Judgment :- S. Sankarasubban J. This Original petition raises questions of importance. Petitioner is an elected member of the first respondent - Kadambazhippuram Grama Panchayat. Petitioner was elected to the Panchayat in the election conducted on 23rd September 1995. There are eleven members in the first respondent-Panchayat. Under S.162 of the Kerala PanchayatRaj Act, each Panchayat should have a standing committee. So far as the first respondent-Panchayat is concerned, the standing committee is to be constituted for assessment of tax, finance, accounts and planning. Under S.162(2) of the Kerala Panchayat Raj Act (hereinafter referred to as 'the act) every standing committee shall consist of members elected by the elected members of the Panchayat from among themselves through proportional representation by a single transferable vote. There is a proviso, which says that such members shall not-be less than three or exceed five. By sub-s.(3) of S.162 of the Act, President and Vice-President are made members of the standing committee by virtue of their office. Of the elected members, one seat is reserved for Scheduled Caste and one for women. 2. First respondent-Panchayat's standing committee is to consist of five elected members of which one should be woman. Thus, three persons are to be elected from the general seat, one from the scheduled Caste and Scheduled Tribe and one from the ladies. Second respondent was the Returning Officer for the purpose of conduct of election to the standing committee. Meeting was called on 15.1.1996. There were four contestants for the three general seats; one for SC/ST and two for the ladies" (petitioner and the third respondent). One of the contestants for the general seat withdrew his nomination. On 15.1.1996 the Returning Officer declared as elected the three persons, who had filed their nominations from the general seats and one from the SC/ST seat. According to the Returning Officer, election was to be conducted only for the seat reserved for women. He issued Ext. P1 declaring that the persons, who have been elected unopposed, cannot exercise their right to vote with, regard to the election of lady member to the standing committee. Original Petition was filed challenging Ext. P1. But on the basis of Ext. P1, election was held and the third respondent was declared to be elected to the standing committee to represent the ladies. Thereafter, Original Petition was amended by filing Ext. P2, which declared the third respondent as elected. Original Petition was filed challenging Ext. P1. But on the basis of Ext. P1, election was held and the third respondent was declared to be elected to the standing committee to represent the ladies. Thereafter, Original Petition was amended by filing Ext. P2, which declared the third respondent as elected. Original Petition as amended challenges Ext. P1 as well as Ext. P2 declaring the third respondent elected. 3. Sri. P. Ravindran, learned counsel for the petitioner, submitted that Ext. P1 as well as Ext. P2 declaring the third respondent elected is invalid. According to learned counsel, it was against the statutory provisions to deny voting right to the members to cast their votes for electing a member to the standing committee on the ground that those persons have already been declared elected as members to the standing committee. The next contention urged was that the third respondent was already a member of the standing committee by virtue of of her position as Vice-President. Hence, she cannot contest again to be a member of the standing committee and hence her nomination ought to have been rejected. 4. Second respondent has filed counter affidavit in which he has justified Ext. P1 and has also stated that there is no legal impediment for the third respondent contesting for the ladies' seat. It was further contended that the Original Petition is not maintainable as there is alternate remedy either by moving for cancellation of resolution or by approaching the Government for cancelling the same. 5. Regarding the contention that alternate remedy is available, this court has held in various cases that the mere existence of an alternate remedy does not prevent the court from exercising its jurisdiction under Art.226 of the Constitution of India. In the decision reported in Sreekanla Bhasi v. University of Kerala - 1996 (1) KLT 626 - a Division Bench of this Court held as follows: "It is not an invariable rule that whenever there is an alternate remedy, this Court should refuse to exercise its jurisdiction under Art.226 of the Constitution of India. In the case of patent illegalities and lack of jurisdiction, this Court would exercise its jurisdiction under Art.226of the Constitution of India and will not relegate the parties to the alternate remedies. The alternate remedy has not stood as a bar when this Court found that the acceptance or rejection of the nomination was illegal". In the case of patent illegalities and lack of jurisdiction, this Court would exercise its jurisdiction under Art.226of the Constitution of India and will not relegate the parties to the alternate remedies. The alternate remedy has not stood as a bar when this Court found that the acceptance or rejection of the nomination was illegal". Further, the alternate remedy suggested is not efficacious and it is doubtful whether it can be made use of for setting aside election of a member to the standing committee. 6. First I shall consider regarding the validity of Ext. P1. As already stated, three persons from the general seats and one from the SC/ST were elected unopposed to the standing committee. So, election was to be conducted only for the seat reserved for woman. There are two candidates, petitioner and the third appellant. Ext. P1 denied the right of the person, who were elected to the standing committee, to exercise their vote. Whether this is valid in law or not is the question to be considered. S.162(2) of the Act gives right to every elected member of the Panchayat to cast his vote for the election of the member to the standing committee. 7 Rules have been prescribed in 1995 with regard to constitution, powers and procedure of the standing committee as Kerala Panchayat Raj (Constitution, Powers and Procedure of S.C. ) Rules, 1995 (hereinafter referred to as 'the rules'). R.6 of the Rules prescribe the procedure. R.6(1) of the Rules says, that if the number of candidates and number of vacancies in each category are the same, then the Chairman shall declare all the candidates as elected. R.6(2) of the Rules states that if the number of candidates is less than the number of vacancies, then the Chairman shall declare such candidates as elected and conduct elections for the remaining seats. Rule 6(3) of the Rules is important. It states as follows: If the number of candidates is more than the vacant seats, then members shall be elected to the vacant seats by the members present at the meeting through proportional representation by a single transferable vote. In Ext. P1, right to vote is denied to the members of the Panchayat, who had already been elected to the standing committee. In Ext. P1, right to vote is denied to the members of the Panchayat, who had already been elected to the standing committee. In the counter affidavit filed by the second respondent, this is justified on the following grounds: each member is entitled to exercise his vote only once. In accordance with the provisions of S.162 of the Act, the members of the standing committee were selected and hence, an order was passed depriving them from voting. Reasoning appears to be that when a member is elected without contest, he is deemed to have exercised vote for himself and hence, he need not exercise his vote further. With great respect, I am unable to accept this reasoning. R.6(3) of the Rules is clear that election is to be conducted only for the seats where the number of candidates is more than the vacancies. In such cases, all the members present can exercise their votes. In the face of the above provision, direction given by the second respondent interdicting the members, who had already been elected to the standing committee without contest, from exercising their vote is illegal. Hence, I quash Ext. P1. 8. Second ground of attack is with regard to the acceptance of nomination of the third respondent. Third respondent was elected as Vice-President of the Panchayat. By virtue of S.162(3) of the Act, President and Vice-President shall be the Ex-Officio members of the standing committee. The argument is that since the third respondent had already become a member of the standing committee, she can't contest again to represent another seat in the standing committee. In this case, it is the seat reserved of women. Contention of the second respondent is that there is no impediment or prohibition created in the Act or Rules against the Vice-President from contesting as elected member to the standing committee. It is very difficult to accept the contention raised by the second respondent. Panchayat has decided that there will be five elected members to the standing committee. The total membership of the standing committee including two Ex-Officio members is seven. By allowing the third respondent to contest again, the strength of the standing committee cannot be maintained. 9. A perusal of the Rules shows that all members, whether elected or not are given equal right in the participation of the meeting and also exercising their votes. The total membership of the standing committee including two Ex-Officio members is seven. By allowing the third respondent to contest again, the strength of the standing committee cannot be maintained. 9. A perusal of the Rules shows that all members, whether elected or not are given equal right in the participation of the meeting and also exercising their votes. For the election of the Chairman of the standing committee, all the members including the Ex-officio members have been given equal right to vote. Contention of the second respondent is that the third respondent will resign her position as Vice President after she gets elected. There is no indication towards that. By allowing the Ex-Officio members to contest again as members of the standing committee one will be negativing the basic principles of representation envisaged in the Act and Rules. Always the attempt should be to see that the strength of the standing committee as mentioned in the Act and Rules is maintained. In the present case, by the election of the third respondent the strength of membership of the standing committee is not maintained. Thus, a reasonable interpretation of the Rules prevents the Ex-Officio members from contesting again. I also rely on the legal maxim 'electa una via non datur recursus adalteram'- he who has chosen one way cannot have recourse to another. In this case, the third respondent had already become a member of the standing committee by virtue of her position as Vice-President. Therefore, she cannot become a member of the standing committee by another process. 10. In the result, Original Petition is allowed, Ext. P1 is quashed and Ext. P2 is to the extent of declaring the third respondent elected to the standing committee as elected member, is set aside. Since, the petitioner alone had filed valid nomination for being elected for the ladies' seat, it is declared that the petitioner is elected to the standing committee of the first respondent Panchayat in the seat reserved for ladies.